Gujarat High Court
Rupa Anil Bhrahmkshatriya vs State Of Gujarat on 5 January, 2022
Author: Biren Vaishnav
Bench: Biren Vaishnav
C/SCA/2931/2020 JUDGMENT DATED: 05/01/2022
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 2931 of 2020
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE BIREN VAISHNAV
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1 Whether Reporters of Local Papers may be allowed
to see the judgment ?
2 To be referred to the Reporter or not ?
3 Whether their Lordships wish to see the fair copy
of the judgment ?
4 Whether this case involves a substantial question
of law as to the interpretation of the Constitution
of India or any order made thereunder ?
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RUPA ANIL BHRAHMKSHATRIYA
Versus
STATE OF GUJARAT
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Appearance:
MR MUNJAAL BHATT FOR M R BHATT & CO.(5953) for the Petitioner(s)
No. 1
MR MEET THAKKAR, ASST GOVERNMENT PLEADER/PP(99) for the
Respondent(s) No. 1, 2,3,4
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CORAM:HONOURABLE MR. JUSTICE BIREN VAISHNAV
Date : 05/01/2022
ORAL JUDGMENT
1. Rule. Mr. Meet Thakkar, learned AGP waives service of notice of Rule on behalf of respondent State.
2. Heard Mr. Munjaal Bhatt, learned advocate for the petitioner and Page 1 of 7 Downloaded on : Sun Apr 24 08:15:12 IST 2022 C/SCA/2931/2020 JUDGMENT DATED: 05/01/2022 Mr. Meet Thakkar, learned AGP for the respondent State.
3. In this petition, under Article 226 of the Constitution of India, the petitioner has prayed to quash and set aside the impugned order dated 27.09.2017 of the respondents insofar as it denies the benefits of Tiku Pay Commission to the petitioner while calculating her retirement benefits and also to direct the respondents to grant Second Tiku Pay Commission benefits with effect from 01.03.2007.
4. It is the case of the petitioner that she was appointed as Class I Gynecology at ESIS General Hospital, Vadodara with effect from 27.03.1992. On getting an appointment in Class-II service as IMO in ESI Scheme at RHGH/Ahmedabad, she joined the same with effect from 01.03.1994 at General Hospital, Rajpur - Hirpur, Ahmedabad.
4.1 The government framed the benefit of accelerated financial benefits popularly called the Tiku Pay Commission under which an incumbent on completing 6 and 7 years of service from initial date of appointment has to be granted the benefits of first and second higher pay scale respectively as per the recommendations laid down in the resolution dated 17.10.1994. It is the case of the petitioner that taking her date as 01.03.1994, she was entitled to first higher grade scale as per Tiku Pay Commission with effect from 01.03.2000 and thereafter the second higher grade pay on completion of 7 years thereafter i.e. with effect from 01.03.2007. It appears that by an order dated 05.03.2004, the petitioner was only granted the benefit of first higher grade scale of Tiku Pay Commission.
5. Mr. Munjaal Bhatt, learned advocate appearing for the petitioner Page 2 of 7 Downloaded on : Sun Apr 24 08:15:12 IST 2022 C/SCA/2931/2020 JUDGMENT DATED: 05/01/2022 would submit that in fact when the order granting the petitioner the benefit of first pay upgradation was passed, she was entitled to even the second pay upgradation on completion of 13 years from the date of initial joining on 01.03.1994. For reasons personal to the petitioner, she tendered an application for voluntary retirement on 01.07.2017 which was accepted and the petitioner voluntarily retired with effect from 27.09.2017. The order of retirement dated 27.09.2017 was conditional inasmuch as it had a condition that the benefits of Tiku Pay Commission would be subject to the resolution dated 11.05.2001 which is a subject matter of challenge in the present petition.
5.1 Mr. Bhatt would submit that admittedly the petitioner was entitled to the benefits of second higher grade pay as per the Tiku Pay Commission on 01.03.2007. He would further submit that the condition that the retirement has been accepted on a condition of the applicability of resolution dated 11.05.2001 is also misconceived. He would rely on a decision of this Court rendered in Special Civil Application No. 5360 of 2017 on 06.12.2017 and specifically emphasize on the extract of the Division Bench decision of this Court in Letters Patent Appeal No. 1469 of 2015. He would further submit relying on para 14 of the memo of the petition which has gone uncontroverted in the reply, that the petitioner has been given discriminatory treatment by not extending the benefits of second higher grade scale as per Tiku Pay Commission as well as in her retirement benefits whereas the same were extended to many officers of the same department. The petitioner has categorically named such officers namely Dr. Harish Chandnani, Dr. Neha Shukla, Dr. Rajni Mewara and Dr. Arpit Dave.
6. Mr. Meet Thakkar, learned AGP appearing for the State would rely Page 3 of 7 Downloaded on : Sun Apr 24 08:15:12 IST 2022 C/SCA/2931/2020 JUDGMENT DATED: 05/01/2022 on the affidavit-in-reply and submit that having retired in the year 2017 by virtue of an application made on 19.06.2017, it was for the first time after ten years of first Tiku Pay Commission, the petitioner asked for second Tiku Pay Commission. He submitted that having retired in 2017, the petitioner for the benefits of second Tiku Pay Commission as well as the retired benefits has filed after 3½ years. Pressing into service the resolution dated 11.05.2001, learned AGP would submit that it is not that the resolution dated 11.05.2021 will apply only to cases where dual benefits of senior scale as well as the Tiku Pay Commission has been given. The later part of the resolution specifically provides that those who resigned or retired voluntarily, their benefits shall be fixed in accordance with the resolution dated 11.05.2001.
7. Considering the arguments advanced by learned advocates for both the sides and taking into consideration the fact of the resolution dated 17.10.1994, admittedly the petitioner on having completed 13 years of service from 01.03.2007 was entitled to the benefits of second Tiku Pay Commission. She voluntarily retired from service which was accepted on 27.09.2017 albeit with a condition that it will be subject to the resolution dated 11.05.2001. The contention of learned AGP that the resolution of 11.05.2001 was complied with is incorrect inasmuch as this court in the oral order dated 06.12.2017 extensively relied on the observations of the Division Bench of this Court. The relevant para reads as under:
"5.1 Extracting the relevant paragraphs from the judgment of the Letters Patent Bench,
7. From a reading of Government Resolution dated 11.05.2001 it is clear that Medial Officers are not entitled to dual benefits of senior scale as well as the benefit of the recommendations of Tiku Pay Page 4 of 7 Downloaded on : Sun Apr 24 08:15:12 IST 2022 C/SCA/2931/2020 JUDGMENT DATED: 05/01/2022 Commission. Without going into the controversy, namely, whether the period from 14.11.1991 to 16.10.1994 applies to the case of the respondent or not, it is clear from the Government Resolution itself that it is issued to clarify that the Medical Officers are not entitled to the dual benefit of senior scale as well as the recommendations of Tiku Pay Commission. As it is not disputed that the respondent was not entitled to the benefit of senior scale, there is no reason or justification for denying the benefits of the recommendations of Tiku Pay Commission. When the respondent- original petitioner has not availed any benefit of senior scale, in which event the question of double benefit will not arise so as to apply Government Resolution dated 11.05.2001.
8. There is also yet another reason to reject this appeal. There is specific averment made in paras 10 and 11 of the petition by the respondent- original petitioner stating that similarly placed persons to that of the respondent- original petitioner, namely, (i) Dr.A.J. Oza, (ii) Dr.Hemant B. Patel, and (iii) Dr.M.J. Gupta, who have voluntarily retired as Class-II officers were also extended the benefit of the recommendations of Tiku Pay Commission for pensionary benefits, but the same was not dealt with in the reply filed by the appellants herein in the petition. As much as the appellants have not rebutted such allegations in the reply, they have to be taken as admitted facts. In that view of the matter there is no reason or justification to make differentiation among similarly placed officers for the purpose of extending the benefit of the recommendations of Tiku Pay Commission. The learned Single Judge has also taken note of such discrimination among similarly placed persons while allowing the petition filed by the respondent- original petitioner.
9. It is clear for us that Government Resolution dated 11.05.2001 cannot be applied to the case of the respondent and further similarly placed persons to that of the respondent were already extended the benefit of the recommendations of Tiku Pay Commission, we Page 5 of 7 Downloaded on : Sun Apr 24 08:15:12 IST 2022 C/SCA/2931/2020 JUDGMENT DATED: 05/01/2022 are of the view that there is no reason or justification in denying such benefit to the respondent- original petitioner, who had served the appellant-Department from September 1985 to 31st December 2013 as Medical Officer Class-II. It is needless to observe that he was compelled to take voluntary retirement in view of disability suffered by him on account stroke which resulted into disability of paralysis to the extent of 75%.
10. For the aforesaid reasons we are of the view that no error is committed by the learned Single Judge so as to interfere with the order of the learned Single Judge dated 20.07.2015 passed in Special Civil Application No.12033 of 2014. For the aforesaid reasons this Letters Patent Appeal is devoid of merits. The same is dismissed accordingly. No order as to cost."
8. When this decision is appreciated in the facts of the case in which it was rendered, para 3.2 of the order which is reproduced hereinbelow would clearly indicate that the case was similar to one of the petitioner.
"3.2 It is the case of the petitioner that on account of personal reasons, he decided to take voluntary retirement by making application with effect from 30th September, 2016. However, while permitting the petitioner to retire voluntarily, a condition was put that the Tiku Pay Commission benefits would be withdrawn and such benefits came to be withdrawn citing Government Resolution dated 11th May, 2001. This was provided in the order dated 30th September, 2016 itself. It is for this grievance that the present petition has filed."
8.1 The petitioner therein had retired voluntarily, however, the retirement order of 30.09.2016 indicated that the Tiku Pay Commission benefits would be withdrawn. It is in this context that relying on the Page 6 of 7 Downloaded on : Sun Apr 24 08:15:12 IST 2022 C/SCA/2931/2020 JUDGMENT DATED: 05/01/2022 Division Bench order of this court which is quoted hereinabove the court opined that the stand of the State Government was misconceived. It was not only on the interpretation of the resolution dated 11.05.2001 that the Division Bench of this court passed such an order but para 8 would also indicate that the court was inclined to take a view as the plea of discrimination in that appeal at the hands of the State was not disputed by the government before the learned Single Judge. Same is the case on hand wherein in clear terms in para 14 of the decision the petitioner has averred that four other doctors were granted the benefits of the Tiku Pay Commission while they retired voluntarily and the condition of 11.05.2001 resolution was not put into their orders of voluntary retirement. On both these counts therefore the order of voluntary retirement putting a condition that it will be subject to resolution of 11.05.2001 is misconceived.
9. The petition is accordingly allowed. The respondents are directed to recalculate the pensionary benefits of the petitioner on the ground that the petition is entitled to second Tiku Pay Commission with effect from 01.03.2007 and pay terminal benefits without clarification of resolution of 11.05.2001. The condition of 11.05.2001 would not be applicable in the case of the petitioner because it was not the case where the petitioner had drawn dual benefits. The entire exercise shall be completed preferably within eight weeks from the date of receipt of the writ of the order of this court. Rule is made absolute. Direct service is permitted.
(BIREN VAISHNAV, J) DIVYA Page 7 of 7 Downloaded on : Sun Apr 24 08:15:12 IST 2022